1. An arrest warrant gives police officers the right to search for a person. Officers may
search the property of the arrestee if they have reasonable belief that the arrestee is
present on the property. The search for the arrestee is not limited to a house or a
dwelling. Officers have the authority to search nonresidential buildings located on the
property if they have a reasonable belief that the arrestee may be located in one of the
nonresidential buildings.

2. Under the facts of this case, where police officers knew that a defendant had used a
detached garage as an office in the past, armed with an arrest warrant and having a
reasonable belief that the defendant might be hiding inside, the officers had the
authority under K.S.A. 22-2405(3) to use all necessary and reasonable force to effect
entry to make an authorized arrest.

3. Appellate courts are precluded from reviewing admissions of evidence of prior crimes
or wrongdoing where a defendant has failed to object during trial.

4. When a party did not request at trial that a limiting instruction be given but
complains on appeal of the failure to give the instruction, the standard of review is a
"clearly erroneous" standard.

5. A recitation or summary of the testimony of witnesses made by a trial court in
explaining a ruling upon an objection to the chain of custody does not amount to
judicial misconduct nor is it of such a nature that it is prejudicial to the substantial
rights of a defendant.

HILL, J.: John M. Beal was convicted of one count of possession of methamphetamine
with intent to sell, one drug tax stamp violation, and one count of possession of drug
paraphernalia. We affirm in part, reverse in part, and vacate a portion of the sentence.

Beal had failed to appear at a sentencing hearing in a separate case. The trial court
issued an arrest warrant for his nonappearance. The officers, in developing a strategy to
execute the warrant, decided to take a police dog along with them in order to effect the arrest.

The officers arrived at Beal's residence, announced their presence, and entered the
home. The officers searched the home but could not locate Beal. Three children who were in
the home at the time of the search informed the officers that Beal was not on the premises.
One of the children told the officers that Beal was "out of town," while another told officers
that Beal was "over at Jimmy's."

The officers continued their search. They moved on to a detached garage located
approximately 15 to 20 feet from the house. Some of the officers had previously been in the
garage when executing a search warrant in 1995. Because of their experience with Beal, the
officers knew that Beal had used the garage as an office. The garage has no windows. It is
equipped with a roll-up door and a heavy metal, reinforced walk-through door, equipped
with a swivel-type peephole. Using a battering ram to punch out the doorknob of the locked
garage, the officers forced their way inside.

The interior of the garage was dimly lit and the officers approached with caution, their
guns drawn for safety. One of the officers spotted a bent spoon attached to a piece of plastic
and a pipe. He believed this to be drug paraphernalia. The officers decided to use the police
dog to search for Beal. The police dog was trained to track individuals as well as to alert
officers to controlled substances. The dog failed to locate Beal but did go straight to a cabinet
located in the garage. The officers concluded that the dog was indicating there were illegal
drugs in the cabinet. The officers left the garage and decided to obtain a search warrant.

While the officers were waiting for the search warrant, Randy Van Pelt arrived at the
residence. Believing Van Pelt to be the defendant, one of the officers removed him from his
car and conducted a pat-down search of his person. Van Pelt was in possession of a small
quantity of methamphetamine and was arrested. Van Pelt told officers that he had gone to
Beal's residence to purchase narcotics from him. Van Pelt told the officers that he had made
five or six drug purchases from Beal in the past, and each time Beal had retrieved the drugs
from the garage. Van Pelt also told the officers that he had purchased methamphetamine
from Beal as recently as 1 week before.

Upon receiving the search warrant, the officers searched the rest of the garage. They
found plastic baggies, a scale, a bent spoon, a glass tube, a record book containing names and
amounts of money, a funnel, a spatula, and three packets containing a white powdery
substance which they believed to be methamphetamine.

At trial, Van Pelt testified that he had purchased methamphetamine from Beal in the
past. Beal did not object to the testimony of Van Pelt.

Beal also testified at the trial. He stated that it had been a year since he had any
dealings with Van Pelt. Beal also testified that he had never sold anything illegal to Van Pelt.
Beal further testified that the scales, baggies, record book, drugs, and other drug paraphernalia
belonged to someone else.

Beal raises five issues on appeal: (1) The trial court erred when it denied his motion to
suppress evidence obtained from his garage; (2) the trial court improperly admitted evidence
of prior drug sales activities; (3) the trial court was required to give a limiting instruction once
it decided to admit evidence concerning his prior drug sale activities; (4) there was insufficient
evidence to sustain his conviction for a drug tax stamp violation and possession of
methamphetamine with intent to sell; and (5) the trial court erred when it commented on the
chain of custody while admitting some State's exhibits at the trial. We will deal with those
issues in order.

Beal argues that the arrest warrant obtained by the officers gave them the right to
search his residence or dwelling but did not give the officers the right to search the detached
garage located 15 to 20 feet away from his house. He argues that the evidence found in the
garage should have been suppressed by the trial court. We disagree.

In reviewing a decision regarding the suppression of evidence, we review the facts of
the decision by a substantial and competent evidence standard of review and review the
ultimate legal decision drawn from those facts de novo with independent judgment. State v.
Baacke, 261 Kan. 422, 437, 932 P.2d 396 (1997). The State bears the burden of proving
that
the evidence was lawfully obtained. See State v.Anderson, 259 Kan. 16,
18, 910 P.2d 180
(1996).

Our United States Supreme Court in Payton v. New York, 445 U.S. 573,
603, 63 L. Ed.
2d 639, 100 S. Ct. 1371 (1980), stated: "[F]or Fourth Amendment purposes, an arrest warrant
founded on probable cause implicitly carries with it the limited authority to enter a dwelling
in which the suspect lives when there is reason to believe the suspect is within."
Payton,
therefore, "requires a two-part inquiry: first, there must be a reasonable belief that the
location to be searched is the suspect's dwelling, and second, the police must have 'reason to
believe' that the suspect is within the dwelling." United States v. Magluta, 44 F.3d
1530, 1533
(11th Cir. 1995). The officers' reasonable belief is evaluated under a totality of the
circumstances test. 44 F.3d at 1535.

In State v. Krout, 100 N.M. 661, 663, 674 P.2d 1121 (1984), the New
Mexico Supreme
Court held that an arrest warrant gave officers the authority to search for the arrestee in a
greenhouse located about 300 yards away from the arrestee's residence on the same lot, as
long as the officers had a reasonable belief that they might find the arrestee there.

In United States v. Pallais, 921 F.2d 684 (7th Cir. 1990), the defendant was
living in an
apartment above a garage on property owned by his children. The officers had an arrest
warrant but not a search warrant, and in an effort to find the defendant the officers entered
into another house located on the same lot. The defendant argued that the officers had no
authority to search the other house as it was not his residence. The Pallais court held
that the
officers had authority to search the house because it was "part of a complex of buildings
constituting [the defendant's] residence." 921 F.2d at 691. The Pallais court further
stated:
"Under Payton, police armed with an arrest warrant can search the entire residence of
the
person named in their warrant in order to execute it--[the defendant] cannot defeat the search
by hiding in the garage." 921 F.2d at 691.

Under Kansas law, K.S.A. 22-2405(3), officers may use all necessary and reasonable
force to effect an entry upon any building or property or part thereof to make an authorized
arrest. The officers in this case had the authority to search the detached garage in an effort to
effect their arrest warrant and upon the reasonable belief that the defendant was in the garage.

An arrest warrant gives officers the right to search for a person. Officers may search
the property of the arrestee if they have reasonable belief that the arrestee is present on the
property. The search for the arrestee is not limited to a house or dwelling. Officers have
authority to search nonresidential buildings located on the property if they have a reasonable
belief that the arrestee may be located in one of the nonresidential buildings. Officers cannot
use the arrest warrant as a "Trojan horse" to search areas where the arrestee could not be
hiding. See Bednar v. State, 506 P.2d 568, 570 (Okla. App. 1973). The
Bednar court held that
the officers could not use an arrest warrant to search a small locked trunk located inside the
arrestee's house when they could not locate the arrestee inside the house. 506 P.2d at 570.

In this case, some of the officers knew Beal had used the detached garage as an office.
Beal was a fugitive and had a history of eluding officers. Some of the officers had previously
searched the garage pursuant to the execution of a search warrant. In fact, when Van Pelt
arrived at the property looking for Beal, the first place that he looked was the garage. While
the officers discovered that the garage was locked and they could not look inside the garage
since it had no windows and only a small peephole, the officers used reasonable force to gain
entry into the garage. Once inside, the officers found drug paraphernalia in plain view. The
other evidence was obtained by the officers after they had secured a search warrant for the
premises.

We hold that the officers had the authority to search the garage in an effort to execute
the arrest warrant because they had a reasonable belief that Beal was inside the garage. We
conclude the trial court properly admitted the evidence.

Beal next argues that the State should not have been allowed to present evidence of his
prior crimes without having a hearing prior to the trial court to determine its admissibility.
Because Beal failed to object at the trial court level, we have no jurisdiction to review this
issue.

The standard of review regarding a trial court's admission of evidence subject to
exclusionary rules is abuse of discretion. Discretion is abused only when judicial action is
arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial
court's view. State v. Haddock, 257 Kan. 964, 978, 897 P.2d 152 (1995).

At trial, the State called Van Pelt as a witness who testified that he had purchased
drugs from Beal about a week before the execution of the arrest warrant. Beal failed to object
at the time but now contends that it was erroneous to admit the evidence of his prior crimes.
We cannot review evidentiary issues which were not objected to at trial. See State v.
Cheeks,
258 Kan. 581, 594, 908 P.2d 175 (1995).

Continuing his argument concerning the testimony of Van Pelt, Beal argues that the
trial court should have given the jury a limiting instruction concerning the use of prior crimes
evidence, even though no contemporaneous objection was made. We disagree.

When a party did not request at trial that a limiting instruction be given but
complains on appeal of the failure to give the instruction, the standard of review is a "clearly
erroneous" standard. See State v. Roberts, 261 Kan. 320, 326, 931 P.2d 683 (1997).

The State argues that the prior crimes evidence was not admitted pursuant to K.S.A.
60-455 but was used as res gestae and therefore no limiting instruction was required.
Generally, res gestae evidence is that evidence which does not constitute a portion of the
crimes charged but has a natural, necessary, or logical connection to the crime. State v.
Peck,
237 Kan. 756, Syl. ¶ 2, 703 P.2d 781 (1985). The State argues that this evidence is res
gestae
because it helps to explain the relationship between Van Pelt and Beal and helps to explain
the presence of baggies, a scale, a bent spoon, a glass tube, a drug ledger, and three packets of
methamphetamine in Beal's garage. While the evidence of the drugs and the drug
paraphernalia needs no additional explanation, the evidence of Beal's prior dealings with Van
Pelt does help explain why Van Pelt arrived at the scene and went first to the garage when he
came to the property looking for Beal.

Failure to request a limiting instruction or failure to object to the lack of a limiting
instruction waives the right to argue the issue on appeal. The defendant has the burden to
request the limiting instruction on evidence which is used as res gestae. See State v.
Redford,
242 Kan. 658, 666, 750 P.2d 1013 (1988).

We conclude that the trial court was not required to offer a limiting instruction on the
evidence of prior crimes, as the evidence was res gestae and does not require a limiting
instruction.

Beal next argues that there was insufficient evidence to convict him for the charge of
the drug tax stamp violation and for the charge of possession with intent to sell. We agree
with his first contention but disagree with his second.

When a sufficiency of the evidence is challenged, the standard of review is whether,
after review of all of the evidence, viewed in the light most favorable to the prosecution, the
appellate court is convinced that a rational factfinder could have found the defendant guilty
beyond a reasonable doubt. State v. Cellier, 263 Kan. 54, Syl. ¶ 7, 948 P.2d
616 (1997).

In order for Beal to be convicted of a drug tax stamp violation, he needs to fall under
the definition of a "dealer" pursuant to K.S.A. 79-5201(c). In order to be considered a dealer,
Beal must have been in possession of "more than one gram of any controlled substance." See
K.S.A. 79-5201(c).

The State secured two pieces of evidence labeled Exhibits 10 and 11. Exhibit 10
weighed 0.4 grams and tested positive for methamphetamine. Exhibit 11 was actually two
packages, neither of which was weighed separately but when weighed together weighed 1.4
grams. Samples from each package contained in Exhibit 11 were combined, and the
combined sample tested positive for the presence of methamphetamine.

The methodology employed in the testing of the purported controlled substances in
this case is suspect. The individual packets that comprised Exhibit 11 were never weighed
separately. We do know that their combined weight was 1.4 grams. While samples were
taken from both packets in Exhibit 11, they were not tested separately but combined into
one sample, which tested positive for methamphetamine. One of the packets could have
contained methamphetamine and one could have contained a substance that was not
controlled. Both packets could have contained methamphetamine, but no test was performed
that would prove this. Even if one of the packets in Exhibit 11 contained methamphetamine,
we do not know its separate weight in order to determine whether when combined with
Exhibit 10 (0.4 grams), there was more than 1 gram of methamphetamine that would require
the purchase of a drug tax stamp. Laboratory tests of this kind must show that there is a
controlled substance as well as its quantity.

Nor is the chemist's opinion that the substances in the two packets of Exhibit 11
"appeared similar" sufficient to sustain a finding of guilt. No foundation testimony was
presented at trial that would lead us to believe that such an opinion was generally accepted as
reliable in the scientific community. See State v. Fuller, 15 Kan. App. 2d 34, 39, 802
P.2d 599
(1990), rev. denied 248 Kan. 997 (1991).

In a criminal case, the burden of proof is placed upon the State. Speculation based on
probability or statistical or mathematical calculations is insufficient to prove guilt beyond
reasonable doubt. State v. Hobbs, 248 Kan 342, 350, 807 P.2d 120 (1991).

We find that there is insufficient evidence that would convince us that a rational
factfinder could have found the defendant guilty of the drug tax stamp violation, because the
State failed to prove that Beal was in possession of more than 1 gram of methamphetamine.

Beal argues that there was insufficient evidence to support his conviction for
possession of methamphetamine with intent to sell. His argument is based entirely on his
argument that the contents of the garage should have been suppressed at trial. If the evidence
would have been suppressed, Beal argues there would have been insufficient evidence to
convict. Since we have held that the search was legal, this argument fails.

Finally, Beal argues that the trial court impermissibly commented on the chain of
custody of State's Exhibits 10 and 11 and therefore deprived him of a fair trial. We disagree.

During trial, Beal objected to the admission of State's Exhibits 10 and 11 based upon a
faulty chain of custody. When ruling upon the objection, the court stated:

"THE COURT: It is up to the court obviously to admit the evidence into evidence or
whatever is presented into evidence. And the evidence that was presented by the witnesses
today was that State's Exhibit 10 and 11 was collected at the garage, that it was placed in bags
at the garage, it was then transported to the sheriff's office in a tube, gray and red in color. It
was locked in the car of Officer Higgins. It was retrieved from there and then placed in the
custody, evidence locker, in the basement of the sheriff's office. From there it was then
transferred to the KBI. It was retrieved by Chief Stanyan, turned over to Hernandez and
examined at the KBI. It was returned and placed back in the locker. The officers testified that
only Higgins and Hernandez had access to the custody locker at the sheriff's office, that it was
in the basement, that it was secured, and the court's ruling is that the chain of custody has
substantially been established as is required by the statute. And it will be admitted into
evidence."

Beal argues that these comments, made in the presence of the jury, are an expression of
the court's personal views about the chain of custody of the evidence.

Allegations of judicial misconduct during the trial must be decided on the particular
facts and circumstances surrounding such alleged misconduct. In order to warrant the
granting of a new trial, it must affirmatively appear that the conduct was of such a nature that
it prejudiced the substantial rights of the complaining party. See State v. Hays, 256
Kan. 48,
Syl. ¶ 2, 883 P.2d 1093 (1994).

We find that Beal's argument is without merit. The duty of the trial court is to
determine the admissibility of the evidence. Here the trial court was merely recounting the
testimony that had been heard concerning the evidence. This testimony had all previously
been heard by the jury.

Furthermore, Beal failed to object to the trial court's statement or request that its
statements be stricken from the record or that the jury be admonished to disregard the trial
court's statements concerning State's Exhibits 10 and 11. Failure to make a contemporaneous
objection prevents an appellate court from considering an issue on appeal. See State v.
Holbrook, 261 Kan. 635, Syl. ¶ 4, 932 P.2d 958 (1997).

We affirm the conviction of one count of possession of methamphetamine with intent
to sell and one count of possession of drug paraphernalia. We reverse the conviction of the
drug tax stamp violation and vacate 7 months of Beal's imprisonment sentence which the
sentencing court had made consecutive to Beal's sentence for possession of methamphetamine
with intent to sell.